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Defending Kasab

The premises of the three Mumbai lawyers who had offered to defend Ajmal Amir Kasab have been ransacked by Shiv Sena activists.

| Dec 24, 2008, 00:00 IST

The premises of the three Mumbai lawyers who had offered to defend Ajmal Amir Kasab have been ransacked by Shiv Sena activists enraged that anyone should dare to stand up for a perpetrator of one of the worst outrages that this country has suffered in recent times. Other citizens, who do not subscribe to the Sena's rough-and-ready approach to social protest, have also voiced their opposition to any defence of Kasab. Speaking for the Parsi community, Bombay Parsi Panchayat chairperson Dinshaw Mehta has been quoted as saying: "Kasab isn't a person who needs to be represented by anybody. Why should Lam (one of the lawyers whose home was vandalised by Sena cadres) do so? Terrorists should be denounced by everybody."Of course terrorists should be denounced by everybody, or at least by everyone who believes in the rule of law. And this is where the problem arises. We must certainly denounce all forms of terrorism. But individuals caught while committing acts of terror have to be subjected to the due process of law. This entails the right to legal representation and a proper trial in accordance with our system. As has been pointed out, preventing Kasab from getting legal counsel only delays the trial of the accused, thus unwittingly playing into the hands of Pakistan which has been demanding evidence and that can only be submitted in the courtroom that the terrorist is indeed a Pakistani national.

Apart from this practical consideration, there is another, more fundamental issue at stake. The rules and laws that are the foundations of any civilised society are never more tested than when faced with the problem of the most barbaric of criminal acts and the meting out of suitable punishment for them. The problem often arises in instances of violent crimes like rape and murder, particularly when these involve children, as it did in the gruesome Nithari case in 2006. Then, as now with Kasab, there were many who felt that the monstrosity of the crimes committed put the accused beyond the pale of the legal obligations of the Criminal Procedure Code.

In the case of a terrorist, like Kasab, the resistance to follow legal guidelines becomes even more pronounced. Serial killers and rapists victimise individuals, and however abominable their acts, they are limited in scope. A terror attack, like Mumbai 26/11, assaults all of us, the entire community, collectively and singly. It is a violation of that part of us which makes us what we are as a polity, as a civil society with ingrained rules of conduct which define us and without which we would cease to exist.

Terrorism doesn't just attack people and buildings; it attacks our collective identity as a civilised society. The ultimate aim of terrorism is to make us into a mirror image of itself, as contemptuous of law, morality and the sanctity of life as it is. When this happens, if it happens, terror wins its final victory over us; it makes us its accomplice.

The strategy of terror is the same the world over: to overturn the civilised order by subverting the principles of justice and human rights on which civilisation is based. Tough anti-terror laws by themselves won't protect us from terrorism. Indeed, the examples of the Homeland Security Act in the US, and the Armed Forces (Special Powers) Act in several parts of India show that laws which override basic constitutional rights are only too often misused and tend to do more harm than good; they provide a persuasive recruitment drive for terror.

By all means let's have a National Investigation Agency and a more stringent Unlawful Activities (Prevention) Act if these will really be effective in curbing terrorism. But while exercising the options made available to them, the powers that be must ensure that essential cornerstones of our democracy such as habeas corpus and the presumption of innocence unless proven guilty are not jettisoned. Equally, legal representation for Kasab must be assured. For in defending Kasab indefensible though he may seem we will really be defending ourselves and the free society in which we live and which makes us ourselves despite terrorism.

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